A recent landmark decision by the Fair Work Commission gives an expansive interpretation of the definition of ‘worker’ to potentially cover governing board members, including chairpersons and directors, for the purposes of the Fair Work Act’s anti-bullying jurisdiction. This is the first time that a chairperson of an organization has been considered to be covered by the bullying jurisdiction, opening the door for a raft of potential new claims.
The case in question is Trevor Yawirki Adamson  FWC 1976 (19 May 2017).
Mr Adamson, the applicant, was the Chairperson of the Executive Board of the Anangu Pitjantjatjara Yankunytjatjara (APY). This is the governing board of Aboriginal lands in the remote north west of South Australia. Johnston Withers receives instructions from APY on a wide range of matters and Graham Harbord of our firm represented the respondent parties in this case.
Mr Adamson made a complaint to the Fair Work Commission which generally deals with employment related disputes and alleged that the General Manager and the Deputy Chairperson of the Executive Board of APY had, disrespected his wishes, interfered with his conduct of meetings of the Executive Board and prevented him from accessing minutes. Much of the conduct complained of concerned the actual governance of APY.
All the allegations were strenuously denied by the respondents, who also argued that the plaintiff was not a worker under the Act and therefore ineligible to apply for the relief sought, in any event. The respondents argued that the claims of Mr Adamson were misconceived and that he had not had proper regard to the specific statutory roles of the General Manager as against that of the Chairperson.
The APY Act establishes APY and its various powers. The role of the Executive Board is to act as the governing body of the APY, and is responsible for carrying out the functions and day to day business of APY.
The Chairperson and Deputy Chairperson are elected by the Executive Board and are entitled to remuneration and allowances within those roles. Mr Adamson’s total remuneration package in this role was over $1,000 per week.
Fair Work Act 2009
Mr Adamson sought orders under s.789FF of the Fair Work Act which would require the defendants, the General Manager and Deputy Chairperson to stop the alleged bullying behaviour, and for APY more generally to monitor behaviour at Board meetings.
The Fair Work Commission cannot order monetary compensation, but has a wide discretion to make orders which restrict behaviour with a focus on stopping any alleged bullying and resuming normal working relationships. This may include restricting communication between the perpetrator and victim, either generally or in relation to certain topics, extra training for an individual or group, regular monitoring of behaviour, and the relocation or removal of one party.
Was Mr Adamson a “worker”?
For an order to be granted, the applicant must show that he or she was “a worker [who] is bullied at work” as per s.789FD(1) of the Fair Work Act. “Worker” means anyone performing work in any capacity, including “an employee, a contractor, a sub-contractor, an outworker, an apprentice, a trainee, a student gaining work experience or a volunteer”.
The respondents argued that a director or member of a governing board is not subject to a contract of employment and is not generally considered at law to be a worker; that the categories of “worker” in the legislation do not include company directors or members of the governing body of an association or statutory body and that broadening the scope of the definition would run contrary to the legislative intention of Parliament.
Mr Adamson contended that the categories were not intended to be exclusive; that he performed work in its literal sense and that the Act was intended to ensure a safe environment for people who performed work.
Commissioner Hampton in his decision said that although Mr Adamson was not a worker “in the traditional sense between a manager/employee”, he did serve the organisation and the APY community and undertook work in that capacity. This, combined with the fact that he was paid significant remuneration for the role, was enough for the Commissioner to make a “provisional finding” that Mr Adamson was a worker and eligible to bring the application.
On 12 April 2017, APY held its annual election and as a result Mr Adamson was not re-elected to the Executive Board.
S.789FF of the Fair Work Act requires that there be a “future risk” of bullying for an order to be made: In this case, the non-election of the plaintiff meant that no such risk now existed.
On the basis that there was no further relevant risk of bullying, the application could not succeed and was dismissed by the Commissioner.
Implications of the judgment
Although Commissioner Hampton’s finding was “provisional” and just related to the position of a Chairperson, there can be no doubt that this case potentially opens the door for a far broader range of claims under the Fair Work Act. Board members at a peer level may now able to bring claims against one another for bullying, arising out of conduct at a Board meeting.
It is not uncommon for board members to have heated differences or strong points of view, particularly within the not-for-profit sector. Given the broad definition of ‘bullying’ within the Act, which is met when an individual or group of individuals “repeatedly behaves unreasonably towards the worker, or a group of workers of which the worker is a member”, it is entirely possible that those differences could be perceived as bullying and result in claims and counter-claims.
Such cases may hamper the ability of the organisation to carry out its normal duties.
Orders made by the Fair Work Commission focus on ending the problematic behaviour, and to that end they have broad discretion. An order may require an organisation to restrict communication between perpetrator and victim, either generally or in relation to certain topics, and the removal of one party if necessary, from the organisation.
A board relies on timely and transparent communication; if two of its members cannot talk to one another or share information, that creates a problem.
Removing a perpetrator is also problematic. Directors in publicly listed companies can generally only be removed via a shareholder vote. A statutory corporation, such as APY, will usually specify a constitutional process such as the requirement for an election. That, in turn, creates a conflict for organisations. Either they are in breach of their own constitution or establishing Act, or they breach the Commission’s order.
Time will tell whether the provisional findings in the Adamson case will be borne out in the future. In the meantime, any organisation with a board should be mindful of the risk that its Board members may bring a claim against one another in the Fair Work Commission.